DSCC Interventions – 27/3/24

Date: 28 March 2024

1st intervention:

This intervention is on behalf of DSCC and Oceans North, 

We also do not have comments on the intersessional group outcome, but in terms of substance, we want to briefly stand back and look at what is being proposed in the EIA/EIS process. These observations also apply to the restructured framework.

Firstly, as we have noted in previous meetings, the BBNJ Agreement contains detailed provisions on EIA which the ISA should implement. Note that under BBNJ there is no distinction between EIA and EIS – there is just the reference to the report, in article 33 of the Agreement. There is a lot to be learned from these hard fought provisions on EIAs in Part IV of the BBNJ Agreement.

Important among this is article 32 of the BBNJ Agreement that requires notification and opportunities for participation, including through the submission of comments, to take place throughout the environmental impact assessment process, and that public notification and consultation shall be inclusive and transparent, conducted in a timely manner and be targeted and proactive when involving small island developing States. Also important is submission of EIA reports to the BBNJ Clearing-House Mechanism under Article 29. This has to take place in the ISA context as well – in practice, sponsoring States would have to submit EIS statements to the BBNJ Clearing-House Mechanism. 

Secondly, the draft is not proposing a transparent process open to stakeholders who could present independent scientific research. The LTC meets behind closed doors.

There is no opportunity for participation other than commenting on drafts (the EIA), there is no opportunity for stakeholders to present independent scientific research and there’s no legal review. So essential elements of public participation as set out in the Aarhus convention – public participation and access to justice – are incomplete or missing.

These concerns are additional to structural concerns with the ISA, including the need for a ⅔ vote and a majority in each Chamber to disapprove a contract in the event that the LTC recommends approval of a plan of work, which can even be by a simple majority vote; the manifestly inadequate  60 day period and the lack of a legal review mechanism in case errors are made.

Finally we would like to note that states have agreed, through the annual resolutions on sustainable fisheries adopted by the UN General Assembly, that in managing deep-sea fisheries in ABNJ, they should “ensure that impact assessments, including for cumulative impacts of activities covered by the assessment…are reviewed periodically and are revised thereafter whenever a substantial change in the fishery has occurred or there is relevant new information” (UNGA resolution 77/118, paragraph 213(b)). The draft regulations on EIAs should meet this standard, and require any changes to the standards, guidelines, regulations and contracts as so reviewed and revised, as well as to take account of any new information or concerns.

2nd intervention:

Thank you, Mr. Facilitator. This intervention is given on behalf of The Ocean Foundation, the Deep Sea Conservation Coalition, The Pew Charitable Trusts, and the Environmental Justice Foundation

Firstly, we support the previous interventions given by the Indigenous representatives.

The concept of intangible heritage is not a new one. Intangible expressions of culture have been part of international discussions since 1973, with related conversations around ensuring protection of human rights since the 1940s. In 2003, the UNESCO Convention on the Safeguarding of Intangible Cultural Heritage was adopted. Now with 183 state parties, this Convention protects a wide array of intangible and living heritage, parts of human history that are connected to people and communities from around the world. 

According to UNESCO, “Intangible cultural heritage does not give rise to questions of whether or not certain practices are specific to a culture. It contributes to social cohesion, encouraging a sense of identity and responsibility which helps individuals to feel part of one or different communities and to feel part of society at large” 

The intangible heritage currently protected under the Convention reflects this understanding, and has inscribed the artisanal know-how of French Baguette making, Pacific Island wayfinding and canoe making, the Chinese and Malaysian Ong Chun rituals and related practices for maintaining the sustainable connection between humans and the ocean and Jamaican Reggae among many more to be protected as intangible heritage.

The current proposals in the intersessional working group span tangible heritage, a predominant focus also seen in archeology, that includes shipwrecks and human remains. This is understandable as a result of the way that international law has been developed and the focus of Article 149 of UNCLOS on archaeological and historical “objects.” However, this begs the question of why, historically, we have prioritized tangible cultural heritage over intangible cultural heritage. Could it be as a result of the history of colonization? Could it be connected with the erasure and exclusion of Indigenous voices and traditional knowledge affecting what is deemed culturally important? The world’s understanding of what is important to protect is changing, supported by increasingly inclusive conversations, the recognition of the right of free prior and informed consent, and archeologists increasingly grappling with how to acknowledge and understand protection of intangible cultural heritage.

Protecting intangible heritage keeps cultures alive. As often refrained here in this room, we have a unique opportunity to dedicate time to these important matters. The biggest question is what will we do with this opportunity: will conversations be rushed to meet an arbitrary deadline and a predetermined outcome? Or will we take our time, do our diligence, and work to ensure that conversations here are future proof, inclusive, and brave?

TOF (Question 3)

Thank you, Mr. Facilitator. This intervention is given on behalf of The Ocean Foundation, the Deep Sea Conservation Coalition, The Pew Charitable Trusts, and the Environmental Justice Foundation

Regarding question 3, one essential element is participation. This is an incredible opportunity for future discussions to be had and a necessity to include and uplift the voices of Indigenous people and local communities, topical experts, and stakeholders. This conversation can bring new and important perspectives for inclusive and well-informed decision-making about an activity whose environmental, social and cultural impacts would stretch far beyond target mining sites alone. 

It is important that intangible cultural heritage is not just taken into account, but actively protected.

Over the last year, many Indigenous people with ties to the deep sea have come to this fora and asked for your attention, asked to be heard, and demonstrated that their ways of life, traditions, history, and rights are at risk from this potential unknown, extractive and destructive industry. This body has a chance to be inclusive, by listening to and engaging with perspectives and voices who have previously been ignored or downplayed.

Effectively protecting the intangible cultural heritage of the deep sea requires engagement with Indigenous voices. To that end, the intersessional working group on underwater cultural heritage has seen a proposal by a group of Indigenous representatives. We encourage a discussion based on this proposal. Efforts to protect the marine environment and govern the Area as the Common Heritage of Mankind would be remiss and incomplete without due conversation and engagement with intangible cultural heritage and the rights of Indigenous people and protecting and safeguarding their cultural heritage.

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